Another way the attorneys may seek to prove a breach of duty is to call on an expert witness to give testimony. A nurse expert witness must meet the following criteria to provide testimony (Wacko Guido, 2020): ● Be currently licensed to practice nursing. ● Have credentials that match or exceed the defendant’s credentials. ● Be without bias. ● Not have any professional or personal relationship with any of the persons involved in the lawsuit. ● Be able to describe the relevant standard of care. ● Be able to describe how the nurse (defendant) failed to meet the standard of care and how that failure caused or contributed to patient injury. Harm For a nurse to be held liable for malpractice, the plaintiff (patient) must prove that actual harm resulted from the nurse’s breach of duty (Wacko Guido, 2020). For example, suppose a nurse administered a dose of ampicillin to the wrong patient because they did not verify the patient’s identity. The patient was not allergic to the medication and had no adverse effects from receiving this medication in error. Although the nurse failed to adhere to an accepted standard of care, no harm was done to the patient. Therefore, the “harm” element of malpractice has not been met. Now consider this example : A patient is to ambulate for the first-time following surgery. The RN had not assessed this patient before ambulation. Instead, they delegated the responsibility for ambulating the patient to a nursing assistant. As the nursing assistant helped the patient to stand, the patient complained of feeling dizzy and fell to the floor, fracturing their hip. The nurse was found to have breached their duty to the patient because they failed to assess the patient before ambulation and delegated a task to a nursing assistant who was not qualified to assess the patient’s postoperative condition. The patient was harmed; therefore, the first three elements of malpractice has Causation is the fourth element of malpractice. The plaintiff must prove not only that the nurse breached their duty and the patient suffered harm, but also that the nurse’s breach of duty specifically caused the patient’s harm. In other words, there must be a causal link between the failure to meet the standard of care and the harm the patient suffered (Wacko Guido, 2020). been met. Causation Case study #5 Carol is one of several nurses named in a malpractice lawsuit. A patient had been receiving antibiotic therapy for an infection. The infection grew steadily worse, and the patient had to have his leg surgically amputated as a result of the infectious process. There is no documentation that Carol evaluated the effectiveness of the antibiotic therapy, as evidenced by documenting and monitoring the appearance of the wound when she and her colleagues changed the dressing. Questions: 1. What element of the ANA scope of practice was violated here? 2. Has the plaintiff proven malpractice? Discussion: Assessment and documentation have been violated. Given there was no assessment data concerning the wound in the chart, it would be hard to say during dressing changes that anyone actually examined the wound. For malpractice the following must be met: duty, breach of duty, harm or damages, and causation. Yes, Carol had a duty to the patient to care for the wound. There was a breach of duty as there was no documentation of assessment that the infection was getting worse (and notification of the provider of this). There was harm to the patient as the patient needed an amputation because of the uncontrolled infection. There was causation in this case.
Nursing consideration: The plaintiff’s attorney must prove that “but for” the nurse’s negligence, the patient would not have suffered harm (Wacko Guido, 2020). For example: Consider the patient who received the ampicillin by mistake in the earlier scenario. Suppose that Monica, an RN, administered the ampicillin around 9 a.m. At 6 p.m., the patient told a nursing assistant that he was having aching pain in his left calf. The nursing assistant reported the complaint to Sharon, the RN accountable for providing nursing care to the patient that evening. Sharon told the nursing assistant to keep an eye on the patient but did not assess them herself. The pain became worse, and ultimately the patient suffered a pulmonary embolism caused by phlebitis in the left calf. They later died in the intensive care unit. The patient’s family sued both Monica and Sharon for malpractice. Upon review, it was determined that, although Monica did administer the ampicillin to the patient in error, this medication incident did not cause the harm suffered as a result of the pulmonary embolism. Sharon, however, was held liable for the patient’s death because she failed to adhere to the standard of care and the NPA by inappropriately delegating assessment to a nursing assistant. Damages Once malpractice has been proven, the plaintiff’s damages are determined. Damages refers to the monetary value of the harm that occurred (Wacko Guido, 2020). Nursing consideration: Damages usually include out-of- pocket medical and related expenses resulting from the occurrence of malpractice. Examples of expenses include lost wages, costs of medical treatment, and pain and suffering experienced by the patient as the result of the harm caused by malpractice (Wacko Guido, 2020). For the patient/plaintiff to win a malpractice lawsuit, all elements of malpractice must be proven. The burden of responsibility for proving malpractice remains with the patient/plaintiff. The nurse/defendant does not have to prove that their actions were not negligent. The patient/plaintiff’s attorney must prove that malpractice occurred and will attempt to convince the judge or jury that each element of malpractice has been proven (Wacko Guido, 2020). Carol and the other nurses’ lack of documentation did not give the provider an opportunity to change the antibiotics for the wound, thereby potentially preventing the amputation. Nursing consideration: Failure to maintain minimum standards of nursing practice accounts for 58.9% of scope of practice license protection matters (NSO, 2020). An example of this is the following. “An RN working at a medical center failed to follow policies and procedures related to proper patient identification of two patients and to review relevant laboratory results. As a result of bypassing these standards, the nurse gave an extra unit of blood to one patient that was intended for the other patient. The State Board of Nursing (SBON) placed the nurse on probation for 3 years.” Another example is “an RN working in the PACU was caring for a patient with extreme nausea. The nurse made several attempts to contact the treating provider but was unsuccessful. The nurse called the pharmacist, stating that she believed the patient’s condition was urgent and she would contact the provider for an order. The medication was dispensed and the nurse gave it to the patient without ever obtaining an order. The SBON publicly reprimanded the nurse and ordered her to pay a fine for violating the Nursing Practice Act by practicing beyond the scope of practice for an RN” (NSO, 2020).
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